New South Wales and Australian Capital Territory

Statistics

Native Title Determinations 56
By consent 15
Litigated 5
Unopposed 36
Outcome  
Native Title does not exist in the determination area 45
Native Title exists in parts of the determination area 6
Native Title exists in the entire determination area 5
Active Native Title determination applications 37
Indigenous Land Use Agreements Registered 11
Area Agreements 11
Body Corporate Agreements 0

Native title representative bodies

 

Members of the Githabul People, Doug Williams and Christine Charles, addressed the gathering at the ILUA celebrations. Source: NNTT
Members of the Githabul People, Doug Williams and Christine Charles, addressed the gathering at the ILUA celebrations. Source: NNTT

Overview

The first determination of native title occurred in New South Wales (NSW) when the Dunghutti people were recognised as the native title holders in the Crescent Head consent determination in April 1997. The determination also settled the issue of compensation for the extinguishment of native title rights and interests as captured in the Crescent Head Agreement reached by the Dunghutti people and the NSW government and NSW Aboriginal Land Council in October 1996.

As noted in the overview,  non-claimant applications are commonplace in New South Wales due to the intersection between the Native Title Act and the Aboriginal Land Rights Act (ALRA). Non-claimant applications are largely filed by Aboriginal land councils under the ALRA, seeking a determination that native title does not exist to enable them to claim the land as freehold under the ALRA. As at 21 September 2017, 47 non-claimant applications have been determined across the country, 41 of these in NSW.

As a result of the intensive settlement in the state, it has proven difficult to prove the ongoing existence of native title. In 2004, the Federal Court determined that native title did not exist in the Sydney region in the Darug People’s claim. In this case, Justice Madgwick said that “Aboriginal dispossession and cultural changes meant that much of their pre-existing culture was destroyed before it could be recorded, ”contributing" to his inability to find in favour of the claimants."

Further, the 2002 decision by the High Court in Wilson v Anderson meant that approximately 80 million acres, or more than one third of NSW, is not claimable under native title.

As a result of these factors, the settlement of native title claimant applications in this state has been slower than in other jurisdictions. The State Government has had “Credible Evidence Guidelines” in place since 1998 which are used in mediation but these have never been published.

References
Mary-Lou Buck v State of New South Wales & Ors (1997) FCA 1624
http://www.atns.net.au/agreement.asp?EntityID=411
Aboriginal Land Rights Act 1983 (NSW)
Gale v Minister for Land & Water Conservation for the State of New South Wales (2004) FCA 374
Gale v Minister for Land & Water Conservation for the State of New South Wales (2004) FCA 374 at 38

Case Studies

Githabul; An ILUA and a Consent Determination

On 29 November 2007 the Federal Court of Australia made a consent determination recognising the Githabul
People’s native title rights and interests over 1120 sq km in nine national parks and 13 state forests in northern New South Wales. The consent determination is recognition that the Githabul People’s native title has always existed, and continues to exist, under their traditional laws and customs.

The consent determination is an important turning point because it recognises the Githabul People’s native title rights under Australian law for the first time.
The Federal Court recognised the Githabul People’s non-exclusive rights to

  • access the determination area for spiritual purposes and to access sites of spiritual significance
  • access and camp in the determination area
  • fish, hunt and gather animals and plants for personal, domestic or non-commercial communal need
  • take and use water for personal, domestic or non-commercial communal need
  • lawfully protect places of importance to the Githabul People in the determination area.
  • These areas will continue to be shared by all those with an interest in the area, including members of the public.

    The Githabul People’s consent determination followed the signing of an indigenous land use agreement (ILUA) between the Githabul People, the Githabul Nation Aboriginal Corporation and the NSW Government in 2007. The Githabul ILUA is a voluntary agreement that applies to the whole of the determination area and some additional areas. The ILUA sets out:

  • the Githabul People will be involved in consultation and management of 11 national parks and reserves through a management committee and the employment of at least four Githabul People
  • the Githabul People will be consulted over the management of 13 state forests
  • certain areas that are culturally significant to the Githabul People, including Tooloom Falls, will be protected
  • 102 ha of Crown lands will be transferred in freehold to the Githabul Nation Aboriginal Corporation
  • native title rights, such as hunting in the national parks and state forests, will be exercised in accordance with certain agreed restrictions
  • there is agreement that native title is extinguished or surrendered over certain areas.
  • “It [the determination] gives the United Githabul Tribal Nation recognition,
    not only by the Federal Court, but by the NSW Government. This is one
    thing that the old people always dreamt of - to be recognised by this State
    Government. The reason why we lodged the claim was to give hope and
    inspiration to other tribal groups across the Commonwealth. Even though it
    took 15 years, it was worth it – we have given hope to other tribes.”
    Trevor Close, Githabul Applicant